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1954 Supreme(All) 192

HIGH COURT OF ALLAHBAD
AGARWALA, M. L. CHATURVEDI, JJ.
Lala Jamuna Prasad
Versus
Sarda Prasad
Ex. First Appeal No.224 of 1951
Decided On : 15-10-1954

Advocates:
P.N. Shukla and H.N. Kapoor, for Appellants; Surendra Nath Verma, for Respondents.

Headnote:

LIMITATION ACT, 1908 - SECTION 7 - JOINT HINDU FAMILY - MANAGER'S POWER TO GIVE DISCHARGE - EXTENT - DISCHARGE OF LIABILITY TO VACATE POSSESSION OF IMMOVABLE PROPERTY - MANAGER'S POWER TO ACT ON BEHALF OF ENTIRE JOINT FAMILY - EXCEPTION UNDER ORDER 32, RULE 6, CIVIL PROCEDURE CODE, 1908.

Fact of the Case:

In 1937, a suit for partition of family properties was filed and decreed on the basis of an award in 1938. An appeal against the decree was dismissed in 1938. The house in dispute was allotted to the decree-holders, but a part of it remained in the possession of the judgment-debtors. The decree-holders did not apply for possession within three years of the decree and made the application after eleven years. The decree-holders included minors represented by their guardian, Jwala Prasad, who was also the manager of the joint Hindu family. The judgment-debtors argued that the application was barred by limitation since Jwala Prasad, as the manager, could have given a discharge without the concurrence of the guardian.

Finding of the Court:

The court held that the application for execution was barred by limitation. The manager of a joint Hindu family has the power to give a discharge on behalf of the entire family, including minors, in matters related to possession of immovable property. This power is not restricted by the provisions of Order 32, Rule 6 of the Civil Procedure Code, which deals with the receipt of money or other movable property by a guardian or next friend on behalf of a minor. Therefore, Jwala Prasad, as the manager, could have given a discharge for the possession of the house, and the delay in filing the execution application beyond three years was not justified.

Issues: Whether the application for execution of the decree for possession of immovable property was barred by limitation.

Ratio Decidendi: The court interpreted Section 7 of the Limitation Act, 1908, and held that the manager of a joint Hindu family has the power to give a discharge on behalf of the entire family, including minors, in matters related to possession of immovable property. This power is not restricted by the provisions of Order 32, Rule 6 of the Civil Procedure Code, which deals with the receipt of money or other movable property by a guardian or next friend on behalf of a minor. Therefore, Jwala Prasad, as the manager, could have given a discharge for the possession of the house, and the delay in filing the execution application beyond three years was not justified.

Final Decision: The court allowed the appeal, set aside the decree of the lower court, and dismissed the application for execution. However, no order was made as to costs.

Judgement

AGARWALA, J.:- This is an appeal by the judgment-debtors arising out of execution proceedings. The only point for consideration is whether the application for execution made by the respondents decree-holders in the Court below was barred by limitation. 2. The facts are simple. In 1937 a suit for partition of the family properties was filed. The suit was decreed on the basis of an award on 2-9-1938. An appeal against it was dismissed on 22-11-1938. By the award the house in dispute was allotted to the respondents decree-holders. A part of it was in possession of the judgment-debtors appellants. The decree-holders-respondents did not make any application for getting possession over the portion of the house which was in the occupation of the judgment-debtors within three years of the decree. They made the application after eleven years on 23-11-1949.

The decree-holders were Gajju Lal, his sen Jwala Prasad, and four sons of Jwala Prasad, namely, Sharda Prasad, Dharam Pal, Ram Pal and Krishna Pal. Of these decree-holders all the sons of Jwala Prasad were minors on the date of the decree. They were defendants to the suit in which the decree was passed and Jwala Prasad was shown as their guardian in the decree. The execution application was made by Sharda Prasad, Dharam Pal and Ram Pal majors and by Krishna Pal minor through Sharda Prasad as his guardian.

The decree-holders alleged that Sharda Prasad had attained majority within three years of the application for execution and that, therefore, the execution application was within time. The objection of the judgment-debtors was that the application was barred by time because Jwala Prasad, if not Gajju Lai, was a major when the decree was passed and being the Manager of the joint Hindu family to which all the decree-holders belonged was able to give a discharge within the (meaning of Section 7, Limitation Act.

Now Sec.7 of the Limitation Act, on which reliance has been placed by both the parties, provides:

"Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased."

2. According to the decree-holders, Jwala Prasad could not, though a Manager of the joint Hindu family, have given a discharge in connection with the decree for possession without the concurrence of the guardian of the minors, and the mere fact that he himself was the guardian of the minors could not have vested him with the right of giving such concurrence. The judgment-debtors case, on the other hand, is that Jwala Prasad being the manager of the joint Hindu family could have given a discharge without the concurrence of the guardian of the minors, even if such a guardian were a different person.

3. We think that the contention of the judgment-debtors is right. The manager of a joint Hindu family can recover possession of joint family properties from a trespasser, or some other person who is not entitled to remain in possession thereof, and time begins to run against the entire joint family when the manager is a major at the time of the commencement of the trespass vide -Narsimha Deo Guru v. Krishna Chandra Dev Garu, AIR 1920 Mad 793 at p.798 (A). The word "discharge" in S.7 is not confined to discharge of a pecuniary liability. It refers to discharge of any liability, pecuniary or otherwise. Where a person is wrongfully in possession of property, he is liable to vacate possession in favour of the true owner. The liability, such as this is also covered by S.7, and if possession is delivered by such person to the Manager of a joint Hindu family, it is a discharge of that liability qua the entire joint family, because the




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